Standard Oil Co., Inc. v. Decell

• Decision Date: 09 March 1936
• Docket Number: 31947
• Citation: 175 Miss. 251,166 So. 379
• Court: Mississippi Supreme Court
• Parties: STANDARD OIL CO., INC., et al. v. DECELL

166 So. 379

175 Miss. 251

STANDARD OIL CO., INC., et al. v. DECELL

No. 31947

Supreme Court of Mississippi

March 9, 1936

(In Banc.)

1. REMOVAL OF CAUSES.

State court held not deprived of jurisdiction of case on ground that it was removed to Federal District Court before conclusion of trial, where state court overruled motion to dismiss suit and refused to order removal of cause on presentation of petition and bond therefor, though notice of defendant's purpose to remove case was given before court acted on such motion (Jud. Code, section 29, 28 U.S.C. A section 72).

2. REMOVAL OF CAUSES.

Giving of notice of defendant's purpose to apply to state court for removal of cause to federal court is insufficient to effect such result, but status of case when application for removal is made controls (Jud. Code, section 29, 28 U.S.C A., section 72).

3. REMOVAL OF CAUSES.

State court has right to pass on sufficiency of petition and bond for removal of cause to federal court and cannot be deprived of jurisdiction unless they are sufficient under law (Jud Code, section 29, 28 U.S.C. A., section 72).

4. MUNICIPAL CORPORATIONS.

Municipalities must use reasonable care to keep their streets, sidewalks and other thoroughfares in reasonably safe condition for persons exercising reasonable care and caution.

5. MUNICIPAL CORPORATIONS.

City knowing of pedestrians' use of city property, leased for automobile service station, as public way for years, was bound to take necessary steps to eliminate danger from nearby unlighted and uncovered grease pit or require lessee to do so.

6. LANDLORD AND TENANT.

Lessor's renewal of lease in reliance on condition of leased premises at time is deemed authorization of continuance of dangerous condition then existing thereon, regardless of their condition when originally let.

7. NEGLIGENCE.

One creating or maintaining excavation or other artificial condition on land in his possession so near existing highway that he realizes, or should realize, that it involves unreasonable risk to others, accidentally brought into contact therewith while traveling on highway, is liable for bodily harm thereby caused them.

8. LANDLORD AND TENANT.

Owner leasing land, used as passageway by numerous pedestrians, with actual or imputed knowledge of artificial condition, which he realizes, or should realize, involved unreasonable risk to them when lessee took possession, is liable for bodily harm caused one of them by such condition, though they were not lessee's patrons to lessor's knowledge.

9. MUNICIPAL CORPORATIONS.

Liability of city and corporation, leasing city property for automobile service station, for injuries to pedestrian, falling at night into unlighted and uncovered grease pit near way used by pedestrians across such property, held for jury under evidence.

10. TRIAL.

Instructions, in action against city and corporation, leasing city property for automobile service station, for injury to pedestrian, falling into unlighted and uncovered grease pit, to find for plaintiff, if, while exercising reasonable care, she was suddenly confused, blinded, and frightened by approaching automobile, stepped aside, and momentarily forgot existence of pit, held not erroneous as taking from jury question of plaintiff's contributory negligence.

11. NEGLIGENCE.

Person exercising care and caution which ordinarily prudent person would have exercised under same or similar circumstances is not negligent merely because he temporarily forgot or was inattentive to known danger.

12. NEGLIGENCE.

Momentary forgetfulness of known danger is not negligence, unless it amounts to failure to exercise ordinary care for one's safety under circumstances.

13. DAMAGES. Instruction, in personal injury suit, that, if plaintiff failed or refused to comply with instructions of her physician and her condition became worse as result of such failure, she could not recover damages for increased infirmity, held properly refused under evidence.

Plaintiff's physician testified that he instructed plaintiff to flex her injured fingers and tried to do so for her, but that it was so painful that she would not permit it, and that flexing of fingers was proper treatment, but that he could not say certainly that if plaintiff had carried out such instructions it would have helped her hands and fingers.

SMITH, C. J., and GRIFFITH, J., dissenting; ANDERSON, J., dissenting in part.

HON. J. F. GUYNES, Judge.

APPEAL from circuit court of Copiah county HON. J. F. GUYNES, Judge.

Action by Mrs. J. J. Decell against the Standard Oil Company, Incorporated, the city of Hazlehurst, and another. From a judgment for plaintiff, named defendants appeal. Affirmed.

G. Garland Lyell, of Jackson, and J. H. Garth, of Hazlehurst, for appellants.

The court should have sustained the petition of the Standard Oil Company to remove the case to federal court.

Keith v. Y. & M. V. R. R., 164 Miss. 556, 145 So. 227; Maxey v. White, 53 Miss. 80.

The motion of the defendants to exclude the evidence of plaintiff and direct a verdict for the defendant was erroneously overruled.

Shell Petroleum Corp. v. Lindholm, 163 So. 839.

The non-suit taken by plaintiff as to Harrison was a voluntary nonsuit. There is no such thing under the decisions of this court and this record, and under the statutes, as an involuntary nonsuit or a compulsory nonsuit if the party insists a jury shall pass upon his case.

Section 594, Code of 1930; Winston v. Miller, 12 S. & M. 550; Hudson v. Strickland, 49 Miss. 591; Ewing v. Glidwell, 3 How. 332; Maxey v. White, 53 Miss. 80; Keith v. Y. & M. V. R. R., 164 Miss. 556, 145 So. 227.

Certain it is that the Standard Oil Company cannot be held liable for the failure of its lessee to keep the drain pit covered, if proper care and caution and responsibility to the public demanded that it be covered. The Standard Oil Company was not operating the filling station. It was Harrison who was operating it. Likewise, the city of Hazlehurst was not operating the filling station. Harrison paid all station bills and privilege licenses.

An injured plaintiff is required to reduce the damage as far as possible and to comply with the directions of the attending physicians and surgeons.

The rights of the plaintiff were not any greater merely because the city of Hazlehurst owned the land on which the pit was dug.

The motion of defendants for a new trial was erroneously overruled by the court.

Improper argument has been succinctly defined in a recent opinion by this court, Nelms & Blum Co. v. Fink, 159 Miss. 372, 383, 131 So. 817, 820, to the effect that it is present when there has been "abuse, unjustified denunciation, or a statement of fact not shown in evidence," to which must be added, of course, that it must appear as probable that the argument may have had a harmful influence on the jury.

Brush v. Laurendine, 150 So. 818, 168 Miss. 7; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356; Pickwick Lines v. Silver, 155 Miss. 765, 125 So. 340; White's Market v. John, 153 Miss. 860, 121 So. 825; Morse v. Phillips, 157 Miss. 452, 128 So. 336; N. O. & N. E. R. Co. v. Jackson, 140 Miss. 375, 105 So. 770.

In the case at bar, not only did the defendants promptly object to the unwarranted argument of counsel while it was in progress, but a special bill of exceptions was taken and there is no disagreement as to what happened.

Sympathy for suffering and indignation at wrong are worthy sentiments, but they are not safe visitors in the courtroom, for they may blind the eyes of justice. They may not enter the jury box, nor be heard on the witness stand, nor speak too loudly through the voice of counsel. In judicial inquiry the cold, clear truth is to be sought and dispassionately analyzed under the colorless lenses of the law.

Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356; Pickwick Greyhound Lines, Inc., v. Silver, 155 Miss. 765, 125 So. 340; White's Grocery Market Co. v. John, 153 Miss. 860, 121 So. 825; Morse v. Phillips, 157 Miss. 452, 128 So. 336; New Orleans & Northeastern Railroad Co., v. Jackson, 140 Miss. 375, 105 So. 770.

A judgment or nonsuit under the decisions of this court is never to be treated as a judgment on the merits.

Keith v. Y. & M. V. R. R., 164 Miss. 556, 145 So. 227.

Even if appellants were not entitled to requested peremptory instruction, the question of what was reasonable care under the circumstances was one of the vital questions involved, and the appellants should not have been prejudiced by any improper argument or improper instructions, or the refusal of proper instructions that would have properly aided the jury in determining what was reasonable care. It was natural for a jury, unless instructed to the contrary, to presume that a higher degree of care by the defendants and less care by the plaintiff, were required to be exercised.

Shell Petroleum Corp. v. Lindholm, 163 So. 839.

While it is too late for appellee to attack the leases, yet it is obvious they were perfectly valid. The land in question belonged to tim city of Hazlehurst and was not a part of any street or sidewalk.

Section 2391, Code of 1930; Caldwell v. George, 96 Miss. 484, 50 So. 631.

In the case at bar the Standard Oil Company had nothing whatever to do with the premises after the lease of same to Harrison who had been in exclusive possession and control of the premises since 1931 and who was obligated by his contract of lease to keep the premises in proper condition and "indemnify the Standard Oil Company against all claims, liabilities, losses and suits from any source whatsoever, caused by or in any manner in resulting from the action of the lessee and/or his employees or agents while these...